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1988 DIGILAW 224 (PAT)

Syed Karar Haider v. State of Bihar

1988-05-12

S.B.SINHA

body1988
JUDGMENT S.B. Sinha, J. This writ application is directed against an order dated 14.6.85 passed by the Director, Records and Survey, Bihar, Patna (Respondent no. 2) whereby and where under he set aside the decision of a competent authority dated 28.2.80 (Respondent no. 3) condoning the break in service of the petitioner. 2. The facts of the case lie in a very narrow compass. The petitioner was appointed as Survey Inspector at the Survey and Settlement Officer, Gaya on 27.6.66 and joined the said post on 9.7.66. 3. Admittedly the petitioner's service could not be taken by the department from 7.10.67 to 10.11.67. He was again reappointed on 11.11.67 and he was not in service from 6.9.68 to 9.9.68, 24.10.69 to 16.11.69 and 17.10.70 to 20.10.70. The petitioner states that his breakage in service for the period mentioned hereinbefore ought to have been condoned by the authority concerned in terms of policy decision taken by the state government as contained in annexure-2 to this writ application. 4. The petitioner as a matter of fact filed such an application before the competent authority which was allowed by an order dated 30th July, 1980. The said order is contained in annexure-4 to this writ application. The Director, Records and Survey, Bihar, Patna by his order dated 14.6.85 as contained in annexure-7 to the writ application held that in view of the fact that the petitioner's service was discontinued due to lack of work there was no justification for respondent no. 3 to condon the breakage of service treating the said period to be one on of extra-ordinary leave. By the said order dated the 25th of May, 1985, therefore, the aforesaid order dated 30th July, 1980 was reversed. 5. Mrs. Seema Ali Khan, learned counsel for the petitioner, submitted that the Director, Land Records and Survey, Bihar, Patna (Respondent no. 2) while passing the said order, (annexure-2 to this writ application) had not taken into consideration policy decision of the state as contained in Annexure-2 thereto. Learned counsel for the petitioner further submitted that in similar circumstances, breakages of service of other persons have been condoned. Learned counsel for the petitioner has further drawn my attention to paragraph no. 14 of the writ petition as also paragraph no. 4 of the supplementary affidavit filed on behalf of the petitioner. 6. Mrs. Learned counsel for the petitioner further submitted that in similar circumstances, breakages of service of other persons have been condoned. Learned counsel for the petitioner has further drawn my attention to paragraph no. 14 of the writ petition as also paragraph no. 4 of the supplementary affidavit filed on behalf of the petitioner. 6. Mrs. Asha Varma, learned counsel for the State, on the other band, submitted that one of the conditions for invoking the aforementioned circular as contained in annexure-2 to the writ application was that the petitioner must be in service of the State at least for a period of two years prior to the said breakage in service. Learned counsel further submitted that as the petitioner has no legal right in terms of the aforementioned circular, no writ in the nature of mandamus can be issued in favour of the petitioner. 7. The aforementioned policy decision of the State Government, annexure-2 to the writ application, was in terms of Rule-105 of Bihar Pension Rules. It appears there are certain typographical error in the said annexure-2 and, as such, the same was considered by me from 'Bihar Pension Rules' published by Malhortra Bros. Rule 105 of Bihar Pension Rules and the State Government decision an the said subject are as follows :- 105. “Subject to any rules which the Provincial Government may prescribe and upon such conditions as it may think fit in each case to impose the authority competent to fill the appointment held by a Government servant at the time condonation is applied for where he is to vacate the appointment, may condone all interruptions in his service." State Government decision :- It is to refer to Rule 105 of the Bihar Pension Rules and to say that State Government have been pleased to lay down the following broad criteria for condoning the breakage in service :- (a) The interruption should have been caused by reasons beyond the control of the Government servant concerned, in other words, it should not have been as a result of voluntary resignation or dismissal etc. (b) The service rendered prior to break should not be for less than two years. (c) The period of break should not exceed one year at a time. In case where there are two or more interruptions the total period of the breaks should not exceed two years. (b) The service rendered prior to break should not be for less than two years. (c) The period of break should not exceed one year at a time. In case where there are two or more interruptions the total period of the breaks should not exceed two years. However, in such cases the period of service rendered prior to break would count if condition at (b) above is satisfied. (Vide Memo No. Pen-1040/69/8990 dated 13.11.1969) From clause (b) of the aforementioned decision, it is evident that the services rendered prior to the break should not be for less than two years. 8. The State has filed a counter affidavit whereon it has been stated that the petitioner is not entitled to the benefit of the aforementioned policy decision of the State as he has not rendered two years, service prior to the aforementioned break in service. This fact has not been controverted by the petitioner. In this view of the matter there can be no doubt that the petitioner has no legal right to take benefit of the relaxation as contained in annexure-2 to the writ application. In this view of the matter, a writ of or in the nature of mandamus cannot be issued by this Court. 9. Learned counsel appearing on behalf of the petitioner however, submitted that as persons similarly situated have been granted such benefit, there is no reason as to why the petitioner should be discriminated against, in the case Om Prakash Choubey v. The Director (Secondary Education Cum Additional Secretary, Government of Bihar and another) (1985 P.L.J.R, 1110) this Court repelled a similar contention and had as follows :- "A mandamus is issued to enforce performance of a legal duty. In my opinion, the only duty which the respondents were/are required to discharge is to strictly adhere to the provisions of the rules. A Govt. constitutionally created to exercise executive powers is obliged to act only in accordance with law. It has no authority of its own beyond what is given to it by law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularising appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularising appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. No mandamus can issue to grant judicial sanction to such administrative drifts as shown by the respondents in the Circulars referred to above and in regularising appointments of unqualified teachers in the schools of the State. Petitioner in C.W.J.C. No. 3634 of 1983 is not qualified for appointment as a teacher No mandamus, therefore, in my opinion, can issue at his instance." 10. In view of the aforementioned pronouncement of the Court, I am of the opinion that the petitioner is not entitled to any relief. 11. In the result, the application is dismissed. However, in facts and circumstances of the case there will be no order as to costs.